Thakur Das Vs. Gulab Kunwar - Court Judgment

LegalCrystal Citation

legalcrystal.com/451980

Subject

Civil

Court

Allahabad

Decided On

May-14-1902

Judge

Aikman and ;Banerji, JJ.

Reported in

(1902)ILR24All464

Appellant

Thakur Das

Respondent

Gulab Kunwar

Excerpt:civil procedure code, sections 556, 558, 591 - appeal--order for re-admkssion of appeal dismissed for default not capable of being used ly the appellant as a ground of objection to the decree. - - in this view an order such as that complained against in this case is not an order contemplated by section 591. in so holding, we are borne out by the decision in the case of chintamony dassi v......appeal arises out of a suit brought by the plaintiff-respondent upon two hundis drawn by musammat mohan kunwar in favour of the plaintiff. mohan kunwar being dead the suit was brought against the defendant-appellant as her legal representative. the defence was a denial of the hundis. the court of first instance (the munsif of agra) dismissed the suit, holding that the execution of the hundis was not proved. on appeal by the plaintiff the learned subordinate judge came to an opposite finding upon a consideration of the evidence, and holding that the hundis were proved, granted the plaintiff a decree for the amount claimed, to be recovered from the estate of mohan kunwar. against this decree the present appeal has been filed. the first ground taken in the memorandum of appeal is.....

Judgment:

Aikman and Banerji, JJ.

1. This appeal arises out of a suit brought by the plaintiff-respondent upon two hundis drawn by Musammat Mohan Kunwar in favour of the plaintiff. Mohan Kunwar being dead the suit was brought against the defendant-appellant as her legal representative. The defence was a denial of the hundis. The Court of first instance (the Munsif of Agra) dismissed the suit, holding that the execution of the hundis was not proved. On appeal by the plaintiff the learned Subordinate Judge came to an opposite finding upon a consideration of the evidence, and holding that the hundis were proved, granted the plaintiff a decree for the amount claimed, to be recovered from the estate of Mohan Kunwar. Against this decree the present appeal has been filed. The first ground taken in the memorandum of appeal is admittedly one which cannot be supported. It is to the effect that the appellant is not liable in law for the payment of Mohan Kunwar's debt. The appellant has not been made personally liable, but only to the extent of any assets which Mohan Kunwar may have left, and which may be in the appellant's hands.

2. The two remaining grounds impugn an order of the lower appellate Court, which, under the provisions of Section 558 of the Code of Civil Procedure, restored the appeal, which it had dismissed for default under Section 556. The law allows an appeal from an order refusing to grant an application under Section 558 for the restoration of an appeal. But it does not provide for an appeal from an order granting such an application. The learned vakil relies upon Section 591 of the Code of Civil Procedure. That section provides that, if a decree be appealed against, any error, defeat or irregularity in an order not otherwise appealable affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. We are of opinion that the meaning of the words in Section 591 'affecting the decision of the case' is that it must be shown that the error, defect or irregularity has affected the decision of the case on the merits. In this view an order such as that complained against in this case is not an order contemplated by Section 591. In so holding, we are borne out by the decision in the case of Chintamony Dassi v. Raghoonath Sahoo (1895) I.L.R. 22 Calc. 981 with which we are in entire accord. For these reasons we dismiss this appeal with costs.